Texas & P. Ry. Co. v. Lively

• Decision Date: 19 November 1896
• Parties: TEXAS & P. RY. CO. v. LIVELY.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

38 S.W. 370

TEXAS & P. RY. CO. v. LIVELY.¹

Court of Civil Appeals of Texas.

November 19, 1896.

Appeal from district court, Cass county; John L. Sheppard, Judge.

Action by M. C. Lively against the Texas & Pacific Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed.

W. T. Armistead, for appellant. O'Neal & Allday, for appellee.

PLEASANTS, J.

On September 12, 1894, judgment was rendered for appellee by the district court of Cass county against appellant for the sum of $2,000. The suit was for the recovery of damages for personal injuries received by the plaintiff through the alleged negligence of the servants of the appellant in the operation of a train of cars upon its track in the town of Atlanta. The defenses to the suit were general denial, not guilty, and contributory negligence. Trial was had without a jury, and the defendant excepted to the judgment, and appealed to this court.

The facts, as we deduce them from the record, are substantially as follows: The plaintiff was a resident of the town of Atlanta, his place of business being on the west side of the defendant's railway. The track runs about north and south through the town, and its depot is situated just north of Common street, the main thoroughfare of the town. On the day of the accident, the plaintiff, being on the east side of the railway on Common street, between the hours of 12 m. and 1 o'clock p. m., started for his place of business, having an engagement to meet another there on business at the hour of 1 o'clock. When he reached the switch track east of the main track, the north-bound passenger train was on the main track, and the street was obstructed by it, and plaintiff halted at the east side until the passenger train moved forward to the north, and cleared the street when plaintiff crossed the east switch and the main track, and halted on the west side of the main track, within about 20 inches of said track. This halt was made on account of the presence of a long freight train in front of plaintiff, on the western switch track, moving south. While waiting for this train to clear the street, and while watching the rear end of the train, intending to move on as soon as his way was open, plaintiff was struck, and knocked down, and dragged some feet, and his right arm broken, by the local freight train, which, after passing on the west switch south, to where that switch intersects with the main track, proceeded to back north, towards the depot, on the main track, and its rear car struck and knocked plaintiff down. Plaintiff was not aware of the presence of this train upon the main track until struck. He had observed this train as it passed south on the west switch, in front of the long freight train that was obstructing his passage, before he crossed the east switch. There were a few box cars standing on that switch to the south of plaintiff, which obstructed his view in that direction; but, as he crossed the main track, he did not look to the south of him, but kept his eyes on the long freight train in front of him on the west switch, his head turned northwardly, and he was watching the rear end of that train when struck. The distance of each switch from the main track is about 10 feet. Just north of him on the east switch, when plaintiff crossed over that switch, the local passenger train was standing, it having just come into the yard. The plaintiff had seen the local freight train frequently going south over the west switch, to its junction with the main track, and thence continue south on the latter track, but had never known that train to back north on the main track, from the...